On Pregnancy Contracts

Why Some Things Should Not Be For Sale: The Moral Limits of Markets

Debra Satz is Marta Sutton Weeks Professor of Ethics in Society and Professor of Philosophy at Stanford University. Her new book, Why Some Things Should Not Be For Sale: The Moral Limits of Markets, is a critical look at the commodity exchanges that strike us as most problematic. What considerations, she asks, ought to guide the debates about such markets? She offers a broader and more nuanced view of markets – one that goes beyond the usual discussions of efficiency and distributional equality – to show how particular markets shape our culture, foster or thwart human development, and support or undermine structures of power. In the excerpt below, from the chapter on women’s reproductive labor, Satz begins to tackle the questions involved in pregnancy contracts.

Sometimes what critics of pregnancy contracts have in mind is not the effect of such contracts on the relationship between reproductive labor and a woman’s sense of self, but their effect on her views (and ours) of the mother-fetus and mother-child bond. On this view, what is wrong with commodifying reproductive labor is that it corrupts motherhood, the relationships between mothers and their offspring. Further, it leads to a view of children as fungible objects.

Mothers and Fetuses

Critics of contract pregnancy contend that the relationship between a mother and a fetus is not simply a biochemical relationship or a matter of contingent physical connection. They also point out that the relationship between a mother and a fetus is different from that between a worker and her material product. The long months of pregnancy and the experience of childbirth are part of forming a relationship with the child-to-be. Elizabeth Anderson makes an argument along these lines. She suggests that the commodification of reproductive labor makes pregnancy an alienated form of labor for the women who perform it; selling her reproductive labor alienates a woman from her “normal” and justified emotions. Rather than viewing pregnancy as an evolving relationship with a child-to-be, contract pregnancy reinforces a vision of the pregnant woman as a mere “home” or an “environment.” The sale of reproductive labor thus distorts the nature of the bond between mother and the developing fetus by misrepresenting the nature of a woman’s reproductive labor as a commodity. What should we make of this argument?

Surely there is truth in the claim that pregnancy contracts may reinforce a vision of women as baby machines or mere wombs. Various court rulings with respect to contract pregnancy have tended to acknowledge women’s contribution to reproduction only insofar as it is identical to men’s; in terms of the donation of genetic material. The gestational labor involved in reproduction is explicitly ignored in such rulings. Thus Mary Beth Whitehead won back her parental rights in the “Baby M” case because the New Jersey Supreme Court acknowledged her genetic contribution; the fact that she was the gestational mother was not decisive.

However…the concern about the discounting of women’s reproductive labor is posed in terms of a principle of equality. By treating women’s reproductive contribution as identical to men’s when it is not, women are not in fact being treated equally. But those who conceptualize the problem with pregnancy contracts in terms of the degradation of the mother-fetus relationship rather than in terms of the equality of men and women tend to interpret the social practice of pregnancy in terms of a maternal “instinct,” a sacrosanct bonding that takes place between a mother and her child-to-be. However, not all women bond with their fetuses. Some women abort them.

Indeed there is a dilemma for those who wish to use the mother-fetus bond to condemn pregnancy contracts while endorsing a woman’s right to choose an abortion. They must hold it acceptable to abort a fetus but not to sell it. Although the Warnock Report takes no stand on the issue of abortion, it uses present abortion law as a term of reference in considering contract pregnancy. Because abortion is currently legal in England, the Report’s position has this paradoxical consequence: one can kill a fetus, but one cannot contract to sell it. One possible response to this objection would be to claim that women do not bond with their fetuses in the first trimester. But the fact remains that some women never bond with their fetuses; some women even fail to bond with their babies after they deliver them.

Are we really sure that we know which emotions pregnancy “normally” involves? Whereas married women are portrayed as nurturing and altruistic, society has historically stigmatized the unwed mother as selfish, neurotic, and unconcerned with the welfare of her child. Until quite recently social pressure was directed at unwed mothers to surrender their children after birth. Thus married women who gave up their children were seen as “abnormal” and unfeeling, and unwed mothers who failed to surrender their children were seen as selfish. Assumptions of “normal” maternal bonding may reinforce traditional views of the family and a women’s proper role within it.